Stephen Colbert faces FCC scrutiny for hitting Trump below the belt

The Federal Communications Commission is scrutinizing Stephen Colbert's vulgar joke about President Trump on “The Late Show” this week, according to Chairman Ajit Pai, and will consider a possible fine.

“I have had a chance to see the clip now and so, as we get complaints — and we’ve gotten a number of them — we are going to take the facts that we find, and we are going to apply the law as it’s been set out by the Supreme Court and other courts, and we’ll take the appropriate action,” Pai said Thursday on Philadelphia radio station WPHT-AM.

On his late-night comedy show on CBS Monday, Colbert said of the president: “The only thing your mouth is good for is being Vladimir Putin’s c--- holster”

“I would change a few words that were cruder than they needed to be,” Colbert said, reflecting on a joke that some viewers considered homophobic. “I’m not going to repeat the phrase. But I just want to say, for the record, life is short, and anyone who expresses their love in their own way, is to me an American hero. I think we can all agree on that. I hope even the president and I can agree on that. Nothing else. But that.”

At the same time, Colbert doubled down on his general approach to ripping the president in his comedy.

“Folks, if you saw my monologue Monday, you know that I was a little upset with Donald Trump for insulting a friend of mine,” Colbert said. “So, at the end of that monologue, I had a few choice insults for the president in return. I don’t regret that. I believe he can take care of himself. I have jokes; he has the launch codes. So, it’s a fair fight.”

Because his show airs late at night, Colbert has more freedom than people who appear on television earlier in the day. But he could still be penalized for using obscene language.

According to the FCC, “for content to be ruled obscene, it must meet a three-pronged test established by the Supreme Court: It must appeal to an average person's prurient interest; depict or describe sexual conduct in a 'patently offensive' way; and, taken as a whole, lack serious literary, artistic, political or scientific value.”

Andrew Schwartzman, a media law specialist at the Georgetown University Law Center, said he believes Colbert and CBS are safe.

“What Colbert said, if run unbleeped, probably wouldn't meet the test for indecency that applies before 10 p.m.,” Schwartzman said. The FCC's indecency standard is lower than its obscenity standard. Indecent content “portrays sexual or excretory organs or activities in a way that does not meet the three-prong test for obscenity.”

As Schwartzman sees it, “there is zero chance this could meet the obscenity test.”

Pai was far less definitive in his remarks. “I don't want to prejudge whatever determination the FCC might make,” he said.

Whether the FCC comes down on Colbert or not, he might consider the company he keeps by descending into quips about oral sex.

After Infowars founder Alex Jones said in March that Rep. Adam B. Schiff (D-Calif.) “looks like the archetypal c---sucker,” Jones’s ex-wife tried to submit the remark as evidence in a child custody trial. When Fox News’s Jesse Watters said of Ivanka Trump last week that he “really liked how she was speaking into that microphone,” he took an abrupt “vacation” while the outrage died down.

Colbert's liberal viewers might take a moment to reflect, too.

“Our motto,” Michelle Obama said in her address to the Democratic National Convention last year, “is when they go low, we go high.”

Yeah, about that: The threat of a violent protest prevented conservative commentator and best-selling author Ann Coulter from speaking at the University of California at Berkeley last week. Liberal readers of the New York Times are flooding the newspaper’s public editor with complaints about the recent hiring of conservative columnist Bret Stephens — a conservative who didn’t even support Trump during the election, by the way.

The new chair of the Democratic National Committee, Thomas Perez, can’t seem to stop cussing in public. And every couple of hours, an automated Twitter account created by a Chicago software developer tweets the name, hometown, occupation and employer of an individual who donated to Trump’s campaign.

Democratic National Committee Chair Tom Perez and Sen. Bernie Sanders (I-Vt.) are holding a week-long series of rallies across the U.S., and Perez has some choice words for Republican leaders. (Bastien Inzaurralde/The Washington Post)

“There’s a real sense — that we have to get past on the left — that every person who voted for Trump is evil,” she added.

That “real sense” appears to foster a mentality (among some) in which Trump and his supporters deserve whatever venom his detractors feel like spewing.

Colbert’s comedy is often laced with anti-Trump commentary; it’s usually clever, and it has propelled him to the top of the late-night ratings. But by hitting below the belt Monday, he rushed the bro-ternity of Jones and Watters and became the latest liberal to ignore Obama’s “go high” mantra.

This post, originally published Tuesday, May 2, has been updated. Paul Farhi contributed to this report.

Callum Borchers joined The Washington Post in 2015 from the Boston Globe, where his beats included national politics, technology and the business of sports. He is a former editor of Citizen's News in Naugatuck, Conn.